Data in the “Cloud” Needs Fourth Amendment Protection

“Cloud computing” is the term for applications that are handled by third-party software and storage on the Internet, like Google Docs and QuickBooks Online, as opposed to programs like Microsoft Word and Quicken, which you load and access from your PC.

Gmail and Hotmail were early examples of cloud computing. The cloud computing concept has since expanded to include popular applications like photo editing and sharing, money management and social networking. It also takes in the increasing number of cloud-based storage services, like Dropbox, which allows you to port documents from client to client, and Carbonite, which performs near real-time back-up of data and documents on your PC.

What most Americans don’t realize is that data stored in the cloud is not protected by the Fourth Amendment the way that same data is if stored on a PC, CD or detachable hard drive in the home. My op-ed in the Washington Times today outlines this problem, and points to a new bill in Congress, S.1011, introduced last week by Sen. Patrick Leahy (D-VT), as a big step toward closing this loophole. S.1011, also cited by Berin here, extends the due process provisions against illegal wiretapping in the existing Electronic Communications Privacy Act (ECPA) to personal data stored in data centers owned and operated by third parties.

As online services and applications evolve, it is critical that these due process protections extend to cloud services. Public cloud infrastructure, applications and platforms are growing at 25 percent per year, according to International Data Corp., a market research firm specializing in high-tech. IDC found that, as of year-end 2010, 56 percent of Internet users use webmail services, 34 percent store personal pictures online, 7 percent store personal videos, 5 percent pay to store files and 5 percent back up their hard drive to a website. These numbers are all expected to grow rapidly.

But this is about more than convenience or personal preference for data storage. Internet applications are becoming geared for the “cloud.” Cloud computing will be the easiest, cheapest and most efficient way users can access personal data on any device, in any location, at any time. It’s not simply an option in the way one chooses to manage data. Cloud computing is becoming necessary to go about one’s daily business. Legal protections need to be there.

Steven Titch / Steven Titch (@stevetitch) is an independent telecom and IT policy analyst. His policy analysis has been published by the Reason Foundation and the Heartland Institute and covers topics such as municipal broadband, network neutrality, universal service, telecom taxes and online gambling.
Titch holds a dual Bachelor of Arts degree in journalism and English from Syracuse University. He lives in Sugar Land, Texas. He burns off energy running 5K races, is an avid poker player, and likes to mellow out in cellar jazz bars.